Guan and Australian Securities & Investments Commission

[2024] AATA 772

Guan and Australian Securities & Investments Commission [2024] AATA 772 (18 April 2024)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2022/4261

Re:Walter Yaolong   Guan

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:18 April 2024

Place:Sydney

The proceedings are dismissed pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Deputy President Bernard J McCabe

Catchwords

PRACTICES AND PROCEDURES – Applicant’s failure to proceed and failure to comply with directions in banning order decision review application – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Deputy President Bernard J McCabe

18 April 2024

1. The following reasons were distilled from a transcript of remarks made at the case management directions hearing held on 12 April 2024. The applicant, Mr Guan, did not attend the proceedings and an application was made to dismiss the proceedings pursuant to s 42A(2) Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act’). The discretion to dismiss in s 42A(2) is enlivened given the applicant’s failure to appear.

2. I am conscious of material referred to in the emails sent from the Tribunal to Mr Guan, and copied to ASIC, on 7 February and on 15 February which note the fact the applicant experiences some health challenges, in particular mental health challenges. The Tribunal is aware from interactions with Mr Guan in the past that he is under significant pressure. He is living overseas, he is unrepresented in these proceedings, and he is involved in other family proceedings.

3. However, as Ms Birch points out in her affidavit filed on behalf of the respondent, these proceedings have been on foot now for a significant period.  The respondent is ready to proceed to hearing.  There have been repeated applications and case management directions hearings that have not resulted in any progress being made.  The Tribunal has been very patient with Mr Guan because I am aware of his challenges.  The Tribunal has asked the applicant repeatedly for some medical evidence, specifically evidence from his treating doctors, so the Tribunal can better understand and accommodate his challenges to facilitate his effective participation in the proceedings.

4. Section 2A of the Act means nothing if an applicant frustrates the Tribunal administering administrative justice to that party. Each party needs to assist the Tribunal to the best of their ability. Indeed, s 33 imposes a statutory duty to that effect. Mr Guan has not assisted the Tribunal. He has not provided any of the requested material, even allowing for reasonable delay. Mr Guan says his doctors have ceased their practices. He has not sought another doctor’s assistance to provide the Tribunal with information to help him participate in the proceedings.

5. The Tribunal is satisfied Mr Guan was provided with notice of today’s event.  He is not here.  He did not take the opportunity to tell the Tribunal either why he could not be here or whether he wanted to participate in some different way, for example, by turning up in person or at least why explaining why he could not turn up in person or by any other means. 

6. The discretion under s 42A(2) of the Act is appropriately exercised in the circumstances of this case.

7. If there is something that has detained Mr Guan and prevented him from making contact in the short term, then he is always free to make an application for the proceedings to be reinstated. Mr Guan would be able to explain what those circumstances were, but also presumably he could provide the Tribunal with the information that will assist in the progression of the matter were that to be allowed.

8. The proceedings are therefore dismissed.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated: 18 April 2024